The Brexit White Paper and UK Energy and Climate Policy

To what degree after Brexit and under the government’s current plans will the UK be a “rule-taker” on energy and environment?

A curious change in wording between the Chequers statement and the ensuing White Paper suggests that the government has left open the possibility that the UK would not only be committed to “current levels”, of renewables for example, but might have to accept even higher targets in order to be consistent with the spirit of “non-regression” as described in the White Paper.The UK government’s controversial White Paper on leaving the the EU, The Future Relationship Between the United Kingdom and the European Union(Cm 9593, contains a number of important remarks on energy and climate policies, which is as it should be, for EU policies in these areas are extremely far-ranging, touching every corner of the economy and presenting some of the largest Brexit dividends available.Generally speaking, the government seems determined not take those dividends, but the precise position put forward is confusing, and indeed in one very important respect the language used in the White Paper differs from that in the preceding Chequers statement. The change does not appear to be an improvement.The Chequers statement had suggested that the degree to which the UK was anticipated to diverge from the EU energy and climate policies, amongst others, was minor. The government wrote in 4(b) of the Statement:

[…] the UK and the EU would also agree to maintain high regulatory standards for the environment, climate change, social and employment, and consumer protection – meaning we would not let standards fall below their current levels.

In the White Paper this general ambition is expressed in words that though similar are not quite identical. For example on page nine of the text, in the preliminary discursive summary, we find that “the Government’s vision is for an economic partnershipthat includes”:

“continued cooperation on energy and transport […]"

and:

“in light of the depth of this partnership, binding provisions that guarantee an open and fair trading environment – committing to apply a common rulebook for state aid, establishing cooperative arrangements between regulators on competition, and agreeing to maintain high standards through non-regression provisions in areas including the environment and employment rules, in keeping with the UK’s strong domestic commitments.”

This new key term, “non-regression”,  is found in several other places in the text, all of which repay study:

 (7(f): “The UK’s proposal for the economic partnership would […] incorporate binding provisions related to open and fair competition, with a common rulebook for state aid, cooperative arrangements on competition, and reciprocal commitments to maintain current high standards through non-regression provisions in other areas, such as environmental and employment rules.”

108(c) “The UK’s proposals include […] committing to high regulatory environmental standards through a non-regression requirement

118: “In the context of a deep economic partnership, the UK proposes reflecting its domestic choice to maintain high regulatory standards for the environment. To that effect, the UK and the EU should commit to the non-regression of environmental standards.There should also be a reciprocal commitment to ongoing environmental cooperation, including in international fora, to solve shared global environmental challenges.

The Chequers statement version was clearly bad for the UK, but is there any reason for thinking that “non-regression” is even more threatening than the commitment to maintaining “current levels”? Unfortunately there is, because the vagueness inherent in the term “non-regression” leaves room for the imposition of higher specific targets in certain areas, renewable energy say, in order not to regress from the general aim, the “standards”, such as the promotion of renewable energy or the reduction of emissions, as embodied in the relevant Directive or policy. This would be particularly problematic if those higher targets were to be generated by the EU itself, for the UK would then simply be a voiceless rule-taker.At this point, apologists for the White Paper and the Chequers statement might observe that since the UK already has much more stringent targets and self-imposed obligations under, for example, the Climate Change Act, that this commitment to at least those levels proposed by EU is surely unthreatening. But this would be a mistake because it neglects the extent to which the Climate Change Act is itself empty of instrumental specifics, and relies on the means specified by other policies, mostly EU policies in point of fact. Indeed, the most troublesome of the EU’s Directives, are concerned with specifying the microscopic means that are used to reach a macroscopic environmental end, and the harm done by such mircromanagement to other EU policies, such as the Emissions Trading Scheme, which never had a chance, is notorious.Committing the UK to “Current levels” in relation to the means specified by the relevant EU Directives, the Industrial Emissions Directive, the Renewables Directive, and even the Energy Efficiency Directive is bad enough. Those levels are extreme and so far reaching that almost any other economic liberty you can name is offset, perhaps more than wholly offset. But, if the vague term “non-regression”, or “non-regression […] of standards”, leaves the UK open to even higher specific instrumental targets under the general ambitions, the standards of those Directives and their successors, the situation is acutely dangerous.And no one should delude themselves into thinking this unlikely. The United Kingdom has been one of the firmer opponents of any extension to the Renewable Energy targets that puts a mandatory burden on member states at national level after 2020. That resistance is unsuprising, since the UK already shoulders the bulk of the EU-wide cost of the 2020 target, up to 45% of the total cost according to UK governement estimates in 2008. It is entirely conceivable that the often very green representatives of the remaining EU states are now more likely to be successful in demanding a mandatory national renewables target for 2030 and beyond. Escaping from the hazard of such parliamentary votes in Brussels is one of the Brexit dividends, so why has Her Majesty’s Government  left the United Kingdom open to the possibility of having to accept such decisions and apply higher targets in order to maintain its needless promise of “non-regression”?One possible answer is that the document is careless rather than devious, and that these hazardous sentences are accidents rather than carefully laid traps. That possibility should not be dismissed. It would, after all, also explain how it is that a White Paper outlining relations between the EU and the UK should ask the EU to bind its own hands in perpetuity in international climate policy, for paragraph 118, quoted above, does exactly that, by stating that “the UK and the EU should commit to the non-regression of environmental standards.” Whitehall may think little of binding its own hands in this way, our civil service sometimes gives the impression of gaining a perverse pleasure from such practices, but it seems unlikely that Mr Selmayr will thank them for this insouciant attempt to fetter his discretion in running the European Union.